Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wilson v AR Browning Nominees Pty Ltd t/as Ad-Built; AR Browning Nominees Pty Ltd t/as Ad-Built v Wilson [2015] NSWCATAP 238 Hearing dates: 2 September 2015 Date of orders: 05 November 2015 Decision date: 05 November 2015 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member Ms T Simon, Senior Member Decision: (1) In appeal AP 14/54862 the appeal is allowed and the order that the respondent pay to the appellant the sum of $34,162.26 is set aside. (2) In appeal AP 14/57320 the appeal is allowed and the order that the respondent pay to the appellant the sum of $34,162.26 is set aside. (3) The matters are remitted to the Tribunal as previously constituted to determine the quantum of the loss suffered by the appellant to be paid by respondent to the appellant (the remitted hearing). (4) Orders 1 and 2 above are not to take effect until the determination of the remitted hearing. (5) The Tribunal is to list the matters for the purposes of making such directions as it thinks fit for the service of additional evidence by the parties, such evidence to be limited to evidence, including expert evidence, as to the cost of rectifying any defects found as a result of the work undertaken by the respondent and otherwise to make the matter ready for the remitted hearing including to determine the issue of costs of the proceedings. (6) There be no order as to costs of the appeals. Catchwords: APPEAL: Procedural fairness- misapprehension of effect of Tribunal directions- failure to allow new evidence- failure of Tribunal to explain right to cross examine- whether appellant can rely on new evidence on appeal. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Gallo v Duflou [2014] NSWCATAP 115 at [21]- [42] Mikel v Dudley [2008] NSWSC 1090 Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1 White v Carlton Tow Bars Pty Ltd [2015] NSWCATAP 8 Category: Principal judgment Parties: Vicki Wilson: Appellant AP 14/54862; Respondent AP 14/57320 AR Browning Nominees Pty Ltd t/as Ad-Built: Appellant AP 14/57320; Respondent AP 14/54862 Representation: Counsel: J Mack for Ms Wilson J Mobellan for AR Browning Nominees Pty Ltd File Number(s): AP 14/54862; AP 14/57320 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 08 October 2014 Before: Mr G Meadows, Senior Member File Number(s): HB 12/20525 REASONS FOR DECISION 1. There are before the Appeal Panel two appeals from a decision of the Consumer and Commercial Division of the Tribunal. Each of the parties to the proceedings below has appealed. 2. The first appeal is brought by Ms Wilson, who was the applicant in the proceedings below. The second appeal, really in the nature of a cross-appeal, is brought by AR Browning Nominees t/as Ad-Built ("Ad-Built) which was the respondent below. 3. The proceedings arise out of home building works undertaken by Ad-Built at Ms Wilson's premises. Ms Wilson alleged, and it was found, that the works were defective. The Tribunal ordered Ad-Built to pay to Ms Wilson the sum of $34,162.26. That sum has been paid. 4. Ms Wilson originally filed a Notice of Appeal on 12 November 2014, within the time prescribed by the rules. She now seeks to rely on an amended Notice of Appeal filed 26 June 2015. She had sought that leave earlier but the Appeal Panel directed that the question of leave be determined at the hearing of the appeal. 5. Ad-Built formally opposed the granting of an extension of time by which Ms Wilson could amend the Notice of Appeal or leave for her to do so (see Ad-Built's submissions at Tab 12 Appeal Book vol.2 (AB 2/12). Mr Mobellan, Counsel for Ad-Built, whilst maintaining reliance on those written submissions, accepted in oral submissions that he could point to no prejudice (except as to costs) if Ms Wilson was granted leave to rely on the amended Notice of Appeal. 6. Whilst the Amended Notice of Appeal does raise some new grounds, it also amplifies on matters raised in the original Notice of Appeal. Each party argued the matter before us on the basis that Ms Wilson was able to rely on the Amended Notice of Appeal. Written submissions have been filed and received. Those submissions deal with all of the issues, including those in the amended Notice of Appeal. 7. In the circumstances, we are of the view that Ms Wilson should be entitled to rely on the Amended Notice of Appeal, and to the extent that any leave is required to do so, we grant that leave. Whilst the practice of filing amended notices of appeal at a late stage of the appeal proceedings is not to be encouraged and each case must be assessed on its own facts, here there is no prejudice to the respondent and the matter was able to be fully argued by legal representatives on behalf of the parties. In such circumstances, we think that the interests of justice dictate that Ms Wilson be able to rely on the amended Notice of Appeal. 8. Ms Wilson alleges that she was denied procedural fairness in the conduct of the hearing below. She says she was denied the opportunity of putting on further and more detailed evidence. She says she put on evidence of builders' quotes in accordance with a direction of, or in reliance on comments made by, a Tribunal member prior to the hearing. For the reasons we set out below, we allow this ground of appeal. 9. Ms Wilson also says she was not informed of her right to cross-examine the witnesses called by the respondent below. For the reasons set out below, we accept the appeal should be upheld on this ground. 10. Ms Wilson also asserts that the quantum of damages awarded to her is in error. She asserts that the Tribunal erred in not allowing her, as part of the sum awarded, 30% builder's margin and GST. Because of the decision we have reached on the first two grounds, it is not necessary to determine this ground. 11. Ad-Built appeals from that part of the Tribunal's reasons which allowed Ms Wilson certain costs as part of her award. It says those matters are normally determined as part of the Tribunal exercising its discretion as to costs of the matter generally and that it had indicated that it wished to make submissions on the issue of costs. It says it was not given the chance to make such submissions. We accept this part of Ad-Built's appeal. As the Tribunal has not yet determined the costs of the hearing, we will remit that issue to the Tribunal to be determined at the same time as the costs issue. The Proceedings Below 1. As adverted to above the proceedings below concerned a claim by Ms Wilson against Ad-Built arising from work done by Ad-Built at Ms Wilson's property in Mount Hutton in NSW. The work was for the construction of a second storey addition to Ms Wilson's home. 2. Ms Wilson claimed that Ad-Built had undertaken defective construction and workmanship resulting in, inter alia, water pooling on the balcony, inadequacy in the lower level wall frame to support the upper level and inadequate floor joists. She sought an order for the payment of money to rectify the defects and for additional costs incurred by her including consultants' costs, painting costs and accommodation costs during repairs. 3. Because of the nature of some of the grounds of appeal raised by Ms Wilson, it is relevant to recite some of the procedural history of the matter. Prior to the hearing before Senior Member Meadows on 19 February 2014, there had been several directions hearings before the Tribunal in order to make directions for the preparation of evidence and the like. Two of those directions hearings took place on 24 April 2013 and 9 October 2013 respectively. Ms Wilson alleges that at those directions hearings, and perhaps an earlier one, it was "indicated" to her that quotes from builders would be an "acceptable" way of proving and supporting the damages she says she had suffered. 4. At the directions hearing on 24 April 2013, Senior member Thode made directions including: 2. The Applicant shall provide to the Respondent and the Tribunal, a copy of all updated documents including but not limited to Mr Laughlin's revised quote on which the Applicant intends to rely at the hearing by 01-May-2013 1. At the directions hearing on 9 October 2013, Senior Member Rosser made directions including: 3. The parties shall file a joint Scott Schedule, setting out the areas of agreement and disagreement in relation to both liability and quantum (including method of rectification), explaining the reasons for any disagreement, cross-referencing and expert reports which have already been filed and supported by costings (including where relevant quotes) by 22 November 2013". 1. At the hearing on 19 February 2014 before Senior Member Meadows there was included in the evidence received by the Tribunal a joint bundle of documents and a revised Scott Schedule following a conclave of engineering experts for the parties. The Tribunal rejected the tender of an additional expert report as it was late and it was held that to allow such a report would have been unfair. There was a divergence of opinion between the experts on some of the items said to be requiring rectification. There was also a divergence of views on the cost to rectify certain of the items in the Scott Schedule. 2. The Tribunal considered these differences and (at [61]-[64]) preferred the evidence of Ad-Built's expert to that of Ms Wilson's. We will return to the bases on which the Tribunal reached this conclusion below. 3. The only order made by the Tribunal was that the respondent (Ad-Built) pay to the applicant (Ms Wilson) the sum of $34,162.26 no later than 60 days after the date of the reasons. The Grounds of Ms Wilson's Appeal Ground 1 1. By this ground Ms Wilson says that the Tribunal erred by failing to provide her procedural fairness. A failure to provide procedural fairness is an error of law and leave is not required to appeal on this basis: see s 80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (the Act). 2. The denial of procedural fairness is said to be the failure of the Tribunal to allow Ms Wilson the opportunity to put on further and more detailed evidence (going to the proof of the amount of her alleged losses) in circumstances where: a. Ms Wilson prepared and relied on builders' quotations as evidence of rectification costs pursuant to a direction of the Tribunal, at an earlier directions hearing; b. The Respondent prepared and relied on detailed expert builder's reports as evidence of rectification costs; c. The Tribunal was notified of Ms Wilson's reliance on the direction and why she had only prepared builder's quotations and not an expert builder's report; d. The Tribunal informed the parties that the transcript would be checked if the difference in detail of the evidence became a major issue; e. The difference in the detail of the evidence was a major issue, the Tribunal found the Respondent's builder's expert report was much more persuasive (at [63]). 1. The substance of this ground, as it was explained at the hearing before us, was that Ms Wilson believed, as did her expert Mr Hutchinson, that there had been a direction or oral instruction at an earlier directions hearing that Ms Wilson could prove the quantum of the rectification costs of her alleged losses by builders' quotes alone. It was said that this infected the nature of the evidence led by Ms Wilson at the hearing. It was further submitted that, at the hearing, this matter was highlighted to the Tribunal who indicated that the transcript would be checked if any discrepancy in the nature of the detail of the experts' reports became major issue. It was submitted that once the Tribunal member became aware of this issue, and in particular the confusion in approach taken by Ms Wilson and her expert arising from the directions hearings, the Tribunal had a duty to allow Ms Wilson to lead additional evidence or grant an adjournment so that additional evidence going to detailed costings could be obtained by her. 2. We were taken to the transcript of the hearing below. Ms Wilson also sought to read a statement dated 16 July 2015 and signed by her. The statement was admitted provisionally and marked Ex AP3 on the appeal. The relevant parts of the statement to this ground are at [6]-[13]. At [8] of the statement, Ms Wilson purports to set out and exchange between the Tribunal (constituted by Senior Member Rosser) and herself about the nature of the evidence Ms Wilson wanted to rely on and what she understood the Tribunal had directed her to rely on. The effect of the material is that Ms Wilson understood that she could rely on builders' quotes only, rather than detailed costings going to the quantum of rectification costs claimed by her. 3. Counsel for Ad-Built objected to the statement being received as evidence. We are prepared to accept the material in Ms Wilson's statement as submissions only. The Appeal Panel can receive evidence on an appeal. Section 80(3)(b) of the Act relevantly states: (3) The Appeal Panel may: (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. We do not think we should receive this material as evidence of the facts of the matters stated. 2. There is an inconsistency between the directions actually made as to the nature of the evidence to be served and what Ms Wilson says in her statement that she was told by Senior Member Rosser. The relevant direction is set out at 16 above. The direction made by the tribunal on 24 April is set out at 15 above. It is clear from those directions what evidence Ms Wilson was directed to serve. Each direction stated in terms that the evidence could include quotes if relevant. None of those directions specifies or directs that Ms Wilson was to rely on builders' quotations only. In this sense, as was raised with counsel for Ms Wilson at the hearing of the appeal, ground 1(a) is inaccurate in so far as it states that Ms Wilson prepared her evidence using builders' quotes only "pursuant to a direction of the Tribunal". There was no such direction. However, for the reasons explained below, we do not think that is the end of the matter. 3. Because of the inaccuracy of ground 1(a) as expressed in the Notice of Appeal (in the sense that there was in fact no direction that Ms Wilson only use builders' quotes pursuant to a direction of the Tribunal) the alleged errors which were identified by the appellant in written submissions and in oral argument are different to those identified in the appellant's ground 1(a) as expressed in the Notice of Appeal. 4. The Appeal Panel considers, however, that the grounds of appeal include, in this case, the grounds identified in submissions which were not specifically included in the same terms as those in ground 1(a) of the Notice of Appeal, as these identify some of the real issues in dispute between the parties (see White v Carlton Tow Bars Pty Ltd [2015] NSWCATAP 8 at [9]). The objects of the Civil and Administrative Tribunal Act include to "enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (s 3(d)). The Tribunal, including the Appeal Panel, is entitled to determine its own procedure and "is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms" (Civil and Administrative Tribunal Act, s 38(1) and (4)). In the context of these statutory provisions, in our opinion a formalistic approach to determining the grounds of appeal is not warranted. The matter was fully exposed in submissions and the respondent is not taken by surprised or otherwise prejudiced. 5. In considering the arguments by the appellant that she was denied procedural fairness by the Tribunal not allowing her to lead new evidence, or adjourning the matter to allow her to do so, we were taken to the transcript of the hearing below (AB 2 Tab 6). At T18 (AB 2 p 138-139) Mr Hutchison, Ms Wilson's expert from Craig's Building Advisory Services Pty Ltd, was giving evidence. At T18.3 (AB 2 p 138) Mr Hutchison said that he had not undertaken a detailed cost breakdown of the items requiring rectification because at a previous directions hearing the presiding member had said that "he would prefer to have written quotations for costings not building estimates". He said he had "taken that literally". The solicitor for Ad-Built suggested to Mr Hutchison that the member may have indicated that quotes may be acceptable but not preferable to costings, but this suggestion was rejected by Mr Hutchison. The Tribunal then confirmed whether the member who was said to have given such a direction was a male and was Member Ringrose. Mr Hutchison confirmed that was the case. We do not have a transcript of any directions hearing before Member Ringrose nor a record of any direction which could be said to constitute an "instruction" from him. There was then some debate about who was the presiding member at the relevant directions hearing and it was in that context that Senior Member Meadows said that he would check the notes and transcript if this issue became a "major issue to be resolved". 6. A consideration of the reasons for the decision, dealing with the expert evidence in particular, does not indicate whether Senior Member Meadows thought that this was a "major issue to be resolved" such that he had to check the transcript. Whether he did check the transcript of the directions hearings is unknown because he made no reference to this issue in the reasons for the Tribunal's decision. 7. As observed, Ms Wilson's complaint on this ground of the appeal is that she says because of what she says were the directions made by the Tribunal, or more accurately what she understood was the effect of those directions, as to the nature of the evidence she could serve and rely on, she has been prejudiced because her expert's evidence, relying only on builders' quotes was rejected in favour of the more detailed costings evidence relied upon by Ad-Built. For the reasons identified above, we do not accept that the Tribunal actually made any direction as alleged by Ms Wilson. However, when one has regard to the transcript, it was clear that Ms Wilson's evidence as to the cost of rectification by way of builders' quotes only was in that form because both she, and her expert Mr Hutchison, had formed the view from previous directions hearings that quotations would be sufficient. It was readily apparent from Mr Hutchison's evidence (T 18.3-18.26) that he had only prepared his evidence that way because of the understanding he had. It can be inferred that having had not insignificant experience in preparing expert reports for use in the Tribunal, absent that understanding, he would have prepared more detailed costings of the matters said to require rectification. 8. Section 38(2) of the Act provides that the tribunal is not bound by the rules of evidence and may inquire into and inform itself on any manner as it thinks fit, subject to the rules of natural justice. Section 38(5) of the Act is in these terms: 38(5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 1. The Tribunal set out the reasons why it preferred the evidence of Ad-Built's expert to that of Ms Wilson's at [61]-[64] of the reasons. The Tribunal gave three reasons why it preferred Ad-Built's evidence. In summary they were, firstly that Ms Wilson's evidence sought to extend the scope of works agreed to by the engineers in the conclave. Secondly, the Ad-Built evidence discussed in more detail both the nature of the defects and the method of rectification. Thirdly, the Tribunal noted that Ad-Built's experts costings were much more detailed than Ms Wilson's expert. In our opinion, because the third, and arguably the second of the reasons by which the Tribunal preferred the evidence led by Ad-Built involved a criticism of the detail of Ms Wilson's expert evidence, being the very matter which was highlighted at the hearing, we are of the opinion that Ms Wilson must succeed on this ground of appeal. As we have highlighted above, it was readily apparent that Ms Wilson's expert had prepared the evidence based upon an understanding of what the Tribunal had directed. 2. Even if that understanding was incorrect, once the Tribunal was aware that Ms Wilson's evidence had been tendered in the form it was because of what she understood was a requirement of the Tribunal, if it intended to accept Ad-Built's expert evidence because it contained more detail, it should have allowed Ms Wilson the opportunity to put on additional more detailed evidence. Ms Wilson, unlike Ad-Built, was not represented by a lawyer at the hearing. We are of the opinion that the Tribunal erred in preferring Ad-Built's evidence because it contained more detail, including with respect to the cost of rectification, without having allowed Ms Wilson the opportunity to tender evidence to address that misconception. In not doing so, the Tribunal did not allow Ms Wilson the reasonable opportunity to be heard. We find that Ms Wilson was denied procedural fairness in the manner asserted. 3. It is relevant out point out the potential significance of the failure to afford procedural fairness in this case. Ms Wilson's claim was for $162,000. Because, at least in part, of the rejection of her expert evidence she was only successful in recovering $34,162.26. Of course, we cannot say what final impact any additional and more detailed evidence Ms Wilson may seek to adduce, and which may be admitted, will have on any award of damages, however, the point is that she should be allowed the reasonable opportunity to bring forward that evidence in order to fairly prosecute her case. 4. We allow this ground of appeal. Ground 2 1. By ground 2 of her appeal, Ms Wilson, in the alternative to ground 1, says that the Tribunal erred in denying Ms Wilson procedural fairness in failing to inform her of her right to cross-examine Ad-Built's expert witness. As noted above, this raises a question of law and no leave to appeal on this ground is required. In support of this submission, counsel for Ms Wilson took the Appeal Panel to the transcript of the hearing below (see AB 2 Tab 6). 2. Counsel for Ms Wilson also took the Appeal Panel to various authorities in support of his submission that in this case, the Tribunal fell short of its duty to inform Ms Wilson, in a manner she understood, of her right to ask questions of the witnesses called by Ad-Built. In particular, reference can be made to a recent decision of the Appeal Panel which summarises the authorities on this point: Gallo v Duflou [2014] NSWCATAP 115 at [21]- [42]. That case, and the authorities referred to therein, hold that the Tribunal's duty to ensure the fairness of the procedure before it, in some cases, means that the failure to allow a party the opportunity to cross-examine may constitute a denial of procedural fairness. In particular, as in this case, where there is an unrepresented litigant before the relevant tribunal, there is a common law duty to ensure that the party understands that they may cross examine the other party and that party's witnesses (subject to any contrary statutory provisions): Gallo v Duflou, ibid. at [33]. We agree that these obligations are consistent with the obligations imposed on the Tribunal by s 38(5) of the Act which we have referred to above. 3. For the reasons that follow, we agree with Ms Wilson's submissions that, in this case, the Tribunal breached that duty and those obligations and thereby denied Ms Wilson procedural fairness. 4. An analysis of the transcript shows that part-way through the hearing (commencing at T13.4 AB 2 p.133) Mr Morrissey, the solicitor who appeared for Ad-Built, raised the prospect of "hot-tubbing" the parties' experts, both of who mere in attendance. The purpose of the "hot-tub" was to have the experts discuss the costings and quotations which had been provided. The following exchange then took place: "MEADOWS: Okay, Ms Wilson, do you want your experts to talk about the costings? WILSON: Umm.. MEADOWS: Or do you want to leave it on the papers? WILSON: The experts can talk about the costings, yeah. MEADOWS: Alright, and you want to call Mr Shepherd as well? MORRISEY: My view Member was, probably the easiest way, and you may disagree with me on this, is to have the experts up there to give a brief description of what they think is involved, and maybe you raise any questions you might have in response, and if either myself or Ms Wilson feels there is anything further to add, we can do that after that….. MEADOWS: Okay, I'm happy to have the experts available. I don't … Hot tubbing is… I'm, you know, not as young as I was once but I like to think I keep up with things and hot tubbing is something I haven't kept up with. I don't find it particularly useful but the procedure whereby the experts are enabled to talk one by one about their views and they can be questioned during that. I am happy to do that if that's ok with the parties. 1. This was the only reference in the transcript of the hearing below to any of the parties asking witnesses questions. It was made in the context of a discussion about a "hot tub" of the experts. The reference to the "hot tub" process itself was most likely confusing to Ms Wilson, who was not represented at the hearing whereas Ad-Built was represented by its solicitor. There is no other indication in the transcript that the Tribunal explained the "hot tub" procedure to Ms Wilson, nor gave any explanation to her that she was able to ask questions of the witnesses in the "hot tub", or at all. 2. Following the exchange referred to above, the transcript shows that Mr Hutchison (Ms Wilson's expert) was asked some questions by Mr Morrissey, the solicitor for Ad-Built. Mr Shepherd (Ad-Built's expert) was then asked some questions primarily by the Tribunal member (see T 19.21-21.15). Mr Hutchison then returned to the witness box with Mr Shepherd (T21.17). There followed a passage where another witness for Ms Wilson, Mr Skelton, was told he was not required for cross-examination by Mr Morrissey and was excused (T 22.46). Thereafter, the "hot tub" of Mr Hutchison and Mr Shepherd continued briefly (T 23.6-25.23). At no point was it explained to Ms Wilson that she was entitled to ask questions of Mr Shepherd during the process. 3. Counsel for Ad-Built accepted that there was no explicit request or invitation proffered to Ms Wilson to cross-examine. He submitted, however, that she was aware of the right to ask question and that the "hot tub" was effectively abandoned after a short period. He noted that she did ask some questions of Mr Browning when he was explaining Ad-Built's position on GST. He submitted, therefore, there was no relevant breach of procedural fairness in this case. 4. Whilst it is true that Ms Wilson did ask some questions of Mr Browning, we think that the important factor here is that the Tribunal failed to explain the "hot tub" process to her and that she was entitled to ask questions of Mr Shepherd going to the issue of costing's and his findings on those matters. This was, in effect, the most critical issue to be determined at the hearing. 5. There was some debate before us as to the nature of the questions Ms Wilson was going to ask and whether, if she had known of her right to ask questions and chose to exercise it, this would have made any difference to the Tribunal's findings. In our opinion this is not a case where it can be said that the failure to allow cross-examination is not problematic because it was unlikely that cross-examination would have produced relevant or useful evidence (cf Mikel v Dudley [2008] NSWSC 1090). Here, such a conclusion could not safely be drawn. 6. In our opinion, unless the Tribunal can be comfortably satisfied that it is unlikely that any cross examination may produce relevant evidence, or there are other procedural or discretionary reasons to prevent cross examination, the ordinary course which should be taken is for the Tribunal to explain its procedure to the parties (particularly litigants in person), including an explanation of the right to cross examine and the purpose of cross examination in the hearing process. The party may then elect whether to cross examine. Of course, the Tribunal retains control of its procedure, including the breadth, scope of and time allowed for any cross examination. Failing any explanation of the right to cross examine, it is more likely that a conclusion that party was denied procedural fairness my be drawn. 7. In this case it may be that if Ms Wilson had asked questions of the expert about the detail and substance of his costings, how they were reached and why they may have underestimated the real cost of rectification, the answers would have led to further questions by her, or by the Tribunal, that called into question the opinions expressed by the expert. 8. Absent questions asked of a party's expert witness, as in this case, the Tribunal may approach that party's evidence as being relevantly unchallenged. The difficulty is exacerbated here because of the facts outlined above by which Ms Wilson and her expert prepared evidence in less detail than that of Ad-Built's expert. That was one of the bases on which Ad-Built's expert evidence was preferred to that of Ms Wilson. There was no other challenge suggested to the accuracy of the Ad-Built expert evidence. As we have observed, if Ms Wilson had cross examined, there may have been material available by which such a challenge could have been mounted. The failure to inform her that she could cross examine the witness cannot therefore be said to have had no likely effect. This failure has resulted in "practical injustice" given the importance of the expert evidence: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37]; Gallo v Duflou ibid at [41]. In that sense we are of the opinion that Ms Wilson was denied procedural fairness. 9. We would allow this ground of appeal. Other grounds 1. Ms Wilson also raised other grounds of appeal going to the quantification of her loss. Those grounds require leave to appeal as they do not raise questions of law. However, in light of the conclusions we have reached on the first two grounds and the orders which will be made, it is not necessary to determine them. Ad-Built's Appeal 1. As we have set out above, Ad-Built also appealed on the quantum of loss awarded to Ms Wilson, particularly with respect to the award of certain items of costs which had been awarded. It did not appeal as to the liability to pay Ms Wilson some amount by way of compensation. The orders it sought were limited to varying the orders of the Tribunal, substituting a different amount to be paid by it and to having the opportunity to address the Tribunal on the issue of costs. 2. It submitted that it had expressly raised with the Tribunal that it wished to address the issues of costs. It can be accepted that it did not have that opportunity before the Tribunal awarded the amounts for items 10 ($2,697.50) and 11 ($1,505.00). In that sense, Ad-Built was denied procedural fairness and it's appeal should be allowed in respect to these amounts. This raises a question of law and leave to appeal is not required. 3. Ad-Built also appealed on the award for item 13 of the joint Scott Schedule being for accommodation expenses ($6,000). It accepts that it needs leave to appeal on this issue as it does not raise a question of law. It says that it should have such leave as the decision of the Tribunal was against the weight of the evidence before it. Because of the view we have taken on Ms Wilson's appeal, as we explain below, we will remit the issue of quantum to the Tribunal. It is therefore not necessary to determine this aspect of Ad-Built's appeal. We will simply remit this issue to the Tribunal to determine as it thinks fit after it considers all of the evidence, including that of costings, before it. Conclusion and Orders 1. Having regard to the conclusions we have made, the question remains what orders should be made to dispose of the appeals. As noted above, the only order the Tribunal made was that Ad-Built pay to Ms Wilson the sum of $34,162.26. The Appeal Panel was told that this amount has been paid. 2. Counsel for Ad-Built submitted that if we upheld grounds 1 and/or 2, any remitter of the matter to the Tribunal should be on strict conditions, including limiting the scope of any remitter and evidence which can be served by Ms Wilson to the issue of costings and that there be a strict timetable for new evidence. He also submitted that Ms Wilson should be ordered to repay to Ad-Built the amount awarded and paid. 3. We agree that any remitter should not mean that Ms Wilson can run an entirely new case. The remitted matter should be confined to allowing her to seek to rely on additional evidence going to the quantum of her loss, including expert evidence, going to the cost of rectification of defects she has alleged exist arising from the work undertaken by Ad-Built the subject of the proceedings below. The Tribunal should make directions for the service of further evidence and any other directions it thinks fit in order to have the remitted matters ready for hearing on the limited issues to be remitted, with the intent that Ms Wilson cannot run an entirely new case alleging additional defects. Rather, she can have the opportunity to put before the Tribunal evidence, including expert evidence, as to the cost of rectifying the defects alleged and the Tribunal can then consider the whole of the evidence on that matter and decide the quantum of loss suffered by Ms Wilson and the amount to be paid to her by Ad-Built. 4. There remains the issue as to what should happen with the amount that has been paid to Ms Wilson pursuant to the orders of the Tribunal. It is relevant to bear in mind that there is no challenge to the finding that Ad-Built is liable to pay Ms Wilson some amount. The question in each appeal is the quantum of that liability. In its notice of appeal Ad-Built sought an order that the amount to be paid to Ms Wilson be varied to $23,870.26. It may be that, if Ms Wilson succeeds on any argument that additional amounts ought to be paid to her, there will be additional amounts to be paid to her. It may be that Ad-Built will still be held liable for the costs amounts it challenges after it has the opportunity to make submissions to the Tribunal. It is also possible that Ad-Built will be ordered to pay an amount to Ms Wilson less than that ordered. If that was the case, the Tribunal could make an order that she pay the difference to Ad Built. These are all matters for the Tribunal on the remitted hearing. 5. We think the appropriate course is therefore to set aside the order made by the Tribunal. The amount to be paid by Ad-Built to Ms Wilson is be determined by the Tribunal on the remitted hearing. Pursuant to s 61 of the Act, we will order that the orders in each appeal setting aside the order of the Tribunal not take effect until the determination at the remitted hearing of the amount to be paid to Ms Wilson by Ad-Built. This means that the money already paid does not have to be re-paid, and any amount paid will be brought to account in any orders made by the Tribunal at the remitted hearing. 6. As to the costs of the appeal, each party has had a measure of success. Whilst it is true that grounds 1 and 2 on which Ms Wilson succeeded were added to the appeal by the Amended Notice of Appeal, we do not think this alone warrants special circumstances such that she should be ordered to pay the costs of this part of the appeal. After all, she was successful on these grounds and although they were added relatively late, as we have observed above, they were added in sufficient time for each party to prepare and argue the appeal on the basis they were included. 7. We do not think either party to each appeal could establish special circumstances warranting the award of costs of the appeal: see s 60 of the Act. There will be no order as to costs of the appeal. 8. We have been told that the parties have approached the Tribunal to argue costs of the hearing before it. As at the date the appeal was heard, that issue had not been re-listed for argument. Obviously, if it has not been heard before these reasons are published, the Tribunal should determine the question of costs of the original hearing, and the remitted hearing, once it has heard and determined the remitted matter. 9. The orders we therefore make are: 1. In appeal AP 14/54862 the appeal is allowed and the order that Ad-Built pay to Ms Wilson the sum of $34,162.26 is set aside. 2. In appeal AP 14/57320 the appeal is allowed and the order that Ad-Built pay to Ms Wilson the sum of $34,162.26 is set aside. 3. The matter is remitted to the Tribunal as previously constituted to determine the quantum of the loss suffered by the appellant to be paid by respondent to the appellant (the remitted hearing). 4. Orders 1 and 2 above are not to take effect until the determination of the remitted hearing. 5. The Tribunal is to list the matters for the purposes of making directions as it thinks fit for the service of additional evidence by the parties, such evidence to be limited to evidence, including expert evidence, as to the cost of rectifying any defects found as a result of the work undertaken by the respondent and otherwise to make the matters ready for the remitted hearing, including to determine the issue of costs of the proceedings. 6. There be no order as to costs of the appeals. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 05 November 2015 - Separated file numbers on coversheet 05 November 2015 - Removed duplicate semicolon in case title DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2015